SC’s 6-week abortion ban is unconstitutional, state Supreme Court rules

The South Carolina Supreme Court on Thursday struck down the state’s six-week abortion ban, ruling 3-2 that it violated the state’s constitutional right to privacy.

In its 147-page opinion, the state’s high court wrote, in part, “We hold that our state constitutional right to privacy extends to a woman’s decision to have an abortion.”

In the majority were state Supreme Court Chief Justice Donald Beatty, Justice John Few and Justice Kaye Hearn, the lone woman on the Supreme Court, who will retire this year. Justices John Kittredge and George James dissented.

The abortion ban, signed into law in 2021, had been temporarily suspended as the S.C. Supreme Court mulled its constitutionality. It means the state’s previous ban at about 20 weeks stays in place for now.

Abortion rights groups, such as Planned Parenthood, the Center for Reproductive Rights and the Women’s Rights Empowerment Network, as well as the White House, celebrated the Thursday ruling.

“We are encouraged by South Carolina’s Supreme Court ruling today on the state’s extreme and dangerous abortion ban,” White House press secretary Karine Jean-Pierre said in a statement. “Women should be able to make their own decisions about their bodies.”

Republican Gov. Henry McMaster disagreed with the high court’s ruling, saying Thursday it had “clearly exceeded its authority.” Republican Attorney General Alan Wilson said in a statement his office is working with the governor and lawmakers to review all available options.

“The people have spoken through their elected representatives multiple times on this issue. I look forward to working with the General Assembly to correct this error,” the governor said in part.

Because South Carolina is one of 10 states to include a specific citizen’s right to privacy in its Constitution, the court’s decision came down to whether the six-week abortion ban constituted an “unreasonable invasion of privacy.”

The state had argued the right to privacy applied only to criminal defendants in the context of search and seizure and did not extend to an individual’s decisions about their own medical care, arguing the Constitution never mentioned abortion or a woman’s right to bodily autonomy.

The Supreme Court majority rejected the state’s argument that citizen’s privacy rights should be limited in this way and found the state’s definition actually ran contrary to prior state Supreme Court rulings.

“We have found that the right to privacy may be implicated in many ways, from requiring a witness to divulge medical information during a criminal trial to forcing a convicted felon to take medication so that he may be competent enough to be executed,” Hearn wrote in the majority opinion.

The state Supreme Court also looked to courts in other states with an explicit constitutional right to privacy that had opined on abortion rights and found all five that had found privacy rights did encompass a woman’s decision to terminate her pregnancy.

The S.C. Supreme Court’s majority opinion, written by Hearn, acknowledged the state had the authority to limit privacy rights when it came to abortion, but said such limits must be reasonable. The time frames imposed must afford a woman sufficient time to determine she is pregnant and take reasonable steps to terminate that pregnancy, the opinion states.

“Six weeks is, quite simply, not a reasonable period of time for these two things to occur, and therefore the Act violates our state Constitution’s prohibition against unreasonable invasions of privacy,” the court majority wrote.

Hearn wrote in the lead opinion that because most women don’t know they’re pregnant until about six weeks, an abortion ban at that point would preclude women from being able to make an informed choice about whether to continue their pregnancy.

“At the risk of stating the obvious, in order for a choice to be informed, a woman must know she is pregnant,” she wrote. “Once a woman knows she is pregnant, in order to have a choice, options must be available.”

Hearn wrote it would be “impossible” for the average woman in South Carolina to have sufficient time to weigh her options, schedule an appointment at one of the three abortion clinics in the state and comply with the mandatory waiting periods before having an abortion.

“This confirms that in reality, there is no ‘choice’ at all,” she wrote. By leaving many women without a choice, Hearn wrote, the six-week abortion ban prohibits certain South Carolinians from making their own medical decisions.

‘Personal preference disguised as legal judgment’

Kittredge wrote in his dissent he did not believe the state Constitution’s right to privacy extended to abortion and slammed his colleagues in the majority, calling their decision “merely a personal preference disguised as a legal judgment.”

“A central feature of our responsibility is to adjudicate the controversy within the framework of the law and not legislate by elevating personal policy preferences to legal status,” he wrote. ”This is a fundamental principle and limitation on the exercise of judicial power. The Court majority violates this principle today, and in doing so, I believe the Court oversteps its bounds.”

Kittredge also criticized Hearn and Beatty for what he said was their decision to conduct their own research after oral argument to bolster their opinions.

“It is breathtaking that members of this Court would unilaterally do their own factfinding and cite to ‘evidence’ outside the record in an effort to bolster their desired result,” Kittredge wrote. “Respondents will read our decision today and learn that a duly enacted law was struck down because Supreme Court justices resorted to their own legislative fact-finding.”

He wrote the state Constitution contained no language to support the interpretation of a privacy right to abortion, that there was no case law that construes the privacy right to extend to abortion and that the history of the privacy-provision amendment makes clear it was not intended to apply to abortion.

“I remain firmly anchored to my unwavering commitment to the principle of judicial restraint,” Kittredge wrote. “Thus, absent a proper constitutional challenge, the authority of the legislature to make policy determinations must be honored.”

Kittredge opined that the Legislature’s abortion ban should be honored because it reflects a balance struck between the competing interests of the mother, the state and the unborn, and is therefore not unreasonable or otherwise unlawful.

“The citizens, through their duly elected representatives, have spoken,” he wrote. “The South Carolina legislature, not this Court, should determine matters of policy.”

SC lawmakers could revisit ban again in 2023

The South Carolina Legislature revisited the abortion ban this fall after the U.S. Supreme Court’s Dobbs decision, overruling the 1973 landmark case of Roe v. Wade. But Republican legislators, who make up the majority of the House and Senate, failed to reach a compromise over how restrictive the ban should be.

Conservative legislators want to revisit the ban this session, which starts Jan. 10.

House Speaker Murrell, R-Sumter, said Thursday the court’s ruling “fails” to respect the separation of powers.

“The U.S. Supreme Court, through their Dobbs decision this summer, handed the issue of abortion back to state legislatures. Unfortunately, the South Carolina Supreme Court followed the path of the U.S. Supreme Court in Roe v. Wade by creating a constitutional right to an abortion where none exists,” the speaker tweeted.

“Today’s decision fails to respect the concept of separation of powers and strips the people of this state from having a say in a decision that was meant to reflect their voices. Instead, South Carolina is left with a decision that is not reflective of our state’s political process or will.”

On the other side of the aisle, House Minority Leader Todd Rutherford said Thursday that the court’s ruling says “women across this state can rejoice in the fact that at least three people think women have a constitutional right, same as a man, to privacy.”

Democrats in the State House said they’re fully prepared for Republicans to push another anti-abortion ban in 2023, but acknowledged how far they can go is predicated on the court’s ruling and also basic legislative math.

In the Senate, where Republicans hold the majority with 30 members to Democrats’ 16, Republicans did not have the votes to pass a ban at conception with narrow restrictions. Instead, they voted to only tweak the state’s six-week ban, now found unconstitutional.

“If (the six-week) “fetal heartbeat” (ban) is unconstitutional, which it is, anything more restrictive than that would clearly be unconstitutional,” Senate Minority Leader Brad Hutto, D-Orangeburg, said Thursday. “The question is, backing up from that, if we had a 20-week ban, could you go to 19, 18, 17 (weeks)? Could you put other restrictions in there?”

Some legislators, particularly Democrats, have pushed to put the question on the ballot for voters, similar to Kansas.

Hutto said Thursday he isn’t opposed to giving voters a say, but said any constitutional ballot question must be clearly written so voters understand what they’re voting on.

“We must make sure it’s clear what a “yes” and “no” means; they need to know what they’re voting on,” he said.